Opinion
No. CV 03-0403610 S
February 8, 2006
MEMORANDUM OF DECISION
The following facts are pertinent to the resolution of this matter. On April 3, 2002, the plaintiff was operating a 1997 Nissan Pathfinder near exit 18 in Westport. Thereafter he was struck from behind by an eighteen-wheel tractor trailer driven by the defendant. Liability has been admitted by the defendant.
The plaintiff claims the accident caused a labrum tear to his right shoulder requiring surgery. He also claims neck and back pain. The plaintiff is claiming past economic damages of $29,930.68 and $100,000 in non-economic damages.
The defendant, although admitting liability, has argued that the plaintiff's injuries were not proximately caused by his actions. More specifically he argues that evidence of three previous accidents in October 1997, February 2000 and June 2000 prove a preexisting condition that was neither caused nor excaberated by his negligence.
The only witness to testify at the hearing was the plaintiff.
I PROXIMATE CAUSE
In addition to proving that the defendant was negligent, since liability was admitted here, the plaintiff must also prove that the negligent act was a proximate cause of his injuries.
The test for determining whether the negligent act committed by a party is the cause of the incident is: was the negligent act or failure to act a substantial factor in producing the injuries to the plaintiff. See Cote v. Colonial Penn Franklin Ins. Co., 88 Conn.App. 262, 266, 869 A.2d 266, cert. denied, 275 Conn. 917, CT Page 2305 883 A.2d 1242 (2005); 1 D. Wright W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 110, p. 221. If it was, then it would be a proximate cause of the injuries. In other words, an actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm.
The term "cause" means more than a mere incident in a chain of events. Plaintiffs have the burden of removing the relationship between defendant's conduct and each of their claims of injury from the realm of speculation. See Cote v. Colonial Penn Franklin Ins. Co., supra, 88 Conn.App. 267. They have the burden of proving with reasonable medical probability that each claim of injury was caused by the defendant's conduct. Id., 266. Plaintiffs do not satisfy their burden of proof by evidence that it was only "possible" that the defendant's conduct caused the alleged injury or damage.
The plaintiff does not have to prove that the negligent act or omission of the defendant was the exclusive factor in causing the plaintiff's injuries. However, the plaintiff must prove that it was a substantial factor which acting alone or in conjunction with other factors brought about the plaintiff's injuries. Pilon v. Alderman, 112 Conn. 300, 301, 152 A.157 (1930).
Here the plaintiff has proven by a fair preponderance of evidence that the defendant's negligence was the proximate cause of his shoulder injury.
The plaintiff testified that on April 3, 2002, the defendant's eighteen-wheel tractor trailer hit him from behind after skidding on I-95 near exit 18 in Westport, CT. The plaintiff testified that the accident caused approximately $4,508.79 in damages to his vehicle. He testified that, although he refused medical treatment at the scene, he soon began to experience headaches, shoulder and back pain.
On April 9, 2002, and April 15, 2002, the plaintiff visited the Associated Spine and Rehabilitation Group. The diagnosis was cervical and thoracic strain. The group prescribed a course of physical therapy, but the plaintiff still felt pain in his shoulder area. The plaintiff changed treatment providers and on November 12, 2003, he was treated at Field Chiropractic Office.
The plaintiff, still not feeling any relief received an MRI on November 7, 2003. The MRI revealed a labrum tear of the right shoulder. He was treated and given several cortisone shots in the effected area.
On September 20, 2004, he was admitted at Sister of Charity Hospital in South Carolina where he received surgery to repair his torn right labrum. The surgeon who performed the procedure was Doctor Nahigian.
On October 18, 2005, Nahigian opined that the plaintiff's injury was causally related to his collision on April 2, 2002. (See letter from Kevin Nahigian MD, plaintiff's exhibit.)
The defendant argues that there was no causal link between his action and the plaintiff's injuries. The defendant argues that the plaintiff's refusal to accept medical treatment at the scene of the accident supports his position. In addition he argues the plaintiff's injuries preexisted the accident and they were not caused or exacerbated by his actions.
After careful review of the record and the testimony at trial the court finds that the plaintiff's testimony has established a casual link between the defendant's negligence and his injury. The plaintiff was in an accident on April 2, 2002, and less than a week later was complaining of shoulder pain, which was subsequently treated by a chiropractor. The plaintiff continued to complain of shoulder pain and was treated with therapy until an MRI was conducted in 2003. This test revealed a torn right labrum which had to be surgically repaired. The court finds the plaintiff's testimony to be reliable and credible. It also finds that this testimony was supported by documents submitted into evidence. The defendant submitted no evidence contradicting the plaintiff's testimony or the evidence provided by Nahigian.
Therefore, the court finds that the plaintiff has proven by a fair preponderance of evidence that his shoulder tear was proximately caused by the defendant's negligence.
II PREEXISTING CONDITION
It is axiomatic that the court cannot award damages for any injuries or losses that preexisted the accident and were not caused or exacerbated by the defendant's negligence. See Parker v. Supermarkets General Corp., 36 Conn.App. 647, 652, CT Page 2307 652 A.2d 1047 (1995); 1 D. Wright W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 235, p. 431.
Here, prior to the April 3, 2002 accident, the plaintiff had been involved in three other motor vehicle accidents. In 1997 the plaintiff was involved in an accident and was assessed a 7% permanent partial disability (PPD) to his cervical spine. On February 1, 2000, he was injured in a motor vehicle accident and assessed another 7% PPD to his lumbar spine. Finally on June 3, 2000, the plaintiff was involved in a third motor vehicle accident and assessed a 10% PPD to his lumbar spine area.
It is important to note that none of the evidence submitted at trial indicated that the plaintiff suffered a labrum tear as a result of these accidents. Moreover, the evidence shows that except in two instances the plaintiff's injuries were confined to areas of the lower back and neck.
The plaintiff claims he was asymptomatic with respect to neck and back pain that predated the accident of April 3, 2002. The plaintiff, however, has failed to provide sufficient medical evidence sufficient to prove that by a fair preponderance of the evidence that the pain associated with his neck and lower back were caused by or exacerbated by the defendant's negligence.
Therefore, the court will decline to award damages for any injury other than the labrum tear.
III DAMAGES
The fundamental rule regarding damages is that the amount awarded should be fair and reasonable compensation for the losses suffered as a direct and proximate consequence of a party's negligence. See Spiess v. Traversa, 172 Conn. 525, 527-28, 373 A.2d 1007 (1977) (approving the trial court's similar charge to the jury); Pontolillo v. Marcel, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0284234 (December 1, 2005, Shluger, J.); 1 D. Wright W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 226, pp. 410-11; D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3rd Ed. 1991) § 171(a), p. 494.
Here the plaintiff is claiming past economic damages of $29,930.68. There is no claim for future economic damages.
The plaintiff is also asking for non-economic damages including loss of life's enjoyment and pain and suffering in the amount of $100,000.
The plaintiff argues that his claims revolve around the pain he has suffered for the two-year time span between the accident and his surgery. He also argues that he cannot engage in life's activities he once enjoyed such as playing with his daughter and exercising.
The court finds the evidence presented by the plaintiff on this issue to be persuasive. The court finds the plaintiff's testimony to be credible and supported by the evidence.
Therefore, taking this evidence into account while discounting for the plaintiff's preexisting back condition the court is going to award the plaintiff $29,930.68 in economic damages and $50,000 in non-economic damages.
The court is also going to order a collateral source hearing prior to the entry of judgment.